Too fat to kill' appeal focuses on NJ wiretap law

Edward Ates talks to his attorneys in the Bergen County Courthouse in Hackensack, N.J. on Friday, Nov. 6, 2009 before he was convicted for the murder of Paul Duncsak. Ates' lawyer claimed he was too fat to have killed his former son-in-law. (AP Photo/Pool, Tariq Zehawi)

NEWARK — The “too fat to kill” defense didn’t work for a Florida man convicted of murdering his son-in-law in 2006, so he is appealing his conviction on the grounds that New Jersey’s wiretapping law is unconstitutional.

The victim, Paul Duncsak, was shot six times at his home in Ramsey. Prosecutors said the 40-year-old pharmaceutical executive and Ates’ daughter, Stacey, were involved in a bitter custody dispute after their divorce.

Prosecutors contended that Ates drove up from Florida and broke into Duncsak’s house, then shot him several times before driving back south.

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At his 2009 trial, Ates’ defense centered around a novel theory: In his 60s and at 5-feet-8 and 285 pounds with numerous health problems, he wasn’t physically capable of running up a flight of stairs to shoot Duncsak, then escape by driving nearly 24 hours straight to his mother’s home in Sibley, La., as investigators believed.

A jury didn’t buy it and convicted Ates of murder, felony murder and other counts. A judge sentenced him to life in prison.

A key piece of evidence in the trial was a wiretapped conversation between Ates and his sister in Louisiana after Duncsak was killed, in which Ates repeatedly went over the timing of his return to make sure stories matched up. His sister later testified that she misled police about the day Ates arrived in Louisiana because her brother had asked her to lie.

While a warrant was required in Florida to search Ates’ residence in Fort Pierce, the phone conversation with his sister was recorded without the need of a warrant in Florida. Under New Jersey’s wiretap law, local authorities are allowed to intercept calls between callers in other states if the “listening post” — the location where the calls were intercepted — was in New Jersey.

Ates claimed in his appeal that even if New Jersey authorities followed the letter of the law, the law itself is unconstitutional because it exceeds federal law and “eradicates all jurisdictional boundaries between the states.”

“We are arguing for a higher standard,” Ates’ attorney, Walter Lesnevich, said last week. “I’m saying you have to do what’s right for New Jersey and say the statute just has too much power.”

An appeals court disagreed last year, denying Ates’ appeal and writing that federal law permits the same type of authority. The court admitted, however, that the issue “has not been previously addressed by our courts” in New Jersey. Lesnevich noted that recent revelations about NSA surveillance may have changed the landscape for appeals such as Ates’.

He also pointed to a case decided last July in which the state Supreme Court, in a unanimous decision, said that all law enforcement officers must get a search warrant based on probable cause if they want access to cellphone locating data. Since 2010, police had had to satisfy a lower standard of demonstrating there were “reasonable grounds” to believe the information would be relevant to an investigation.